Allahabad High Court
Abhishek Sharma And 3 Others vs State Of U P And 2 Others on 27 April, 2022
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 11.04.2022 Delivered on 27.04.2022 Court No. - 34 1. Case :- WRIT - A No. - 10266 of 2018 Petitioner :- Abhishek Sharma And 3 Others Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Shantanu Khare,Rajesh Dutta Pandey,Satish,Sr. Advocate Shri Ashok Khare Counsel for Respondent :- C.S.C.,Avneesh Tripathi,Gopal Krishna Mishra,Heera Lal Yadav,Hira Lal Yadav,Hritudhwaj Pratap Sahi,M.N. Singh,Satish,Shikhar Tandon,Sunil Kumar 2. Case :- WRIT - A No. - 10321 of 2018 Petitioner :- Manoj Panwar Respondent :- State Of U.P. And Anotehr Counsel for Petitioner :- Vatsala,Ajay Kumar,Avneesh Tripathi Counsel for Respondent :- C.S.C.,M.N. Singh,Shikhar Tandon 3. Case :- WRIT - A No. - 10340 of 2018 Petitioner :- Amit Kumar Tripathi Respondent :- State Of U.P. And2 Others Counsel for Petitioner :- Siddharth Khare,Sr. Advocate Counsel for Respondent :- C.S.C.,Anil Kumar Ray,Avneesh Tripathi,M.N. Singh 4. Case :- WRIT - A No. - 10356 of 2018 Petitioner :- Gyaneshwar Pratap Yadav And 3 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Siddharth Khare,Amarnath Tripathi,Rakesh Pathak,Sr. Advocate Ashok Khare Counsel for Respondent :- C.S.C.,Anil Kumar Ray,Avneesh Tripathi,M.N. Singh 5. Case :- WRIT - A No. - 10361 of 2018 Petitioner :- Arvind Kumar Yadav And 2 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shantanu Khare,Sr. Advocate Shri Ashok Khare Counsel for Respondent :- C.S.C.,Anil Kumar Ray,Avneesh Tripathi,M.N. Singh 6. Case :- WRIT - A No. - 10519 of 2018 Petitioner :- Rishabh Vikram Singh Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Vijay Kumar Singh,Greesh Kumar Malviya Counsel for Respondent :- C.S.C.,Anil Kumar Ray,Avneesh Tripathi,M.N. Singh 7. Case :- WRIT - A No. - 10576 of 2018 Petitioner :- Jitendra Yadav Respondent :- State of U.P. and Another Counsel for Petitioner :- Ravi Prakash,Neeraj Srivastava,Nirvikalp Pandey,Raghuvansh Misra,Subhash Chandra Yadava Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh 8. Case :- WRIT - A No. - 16195 of 2018 Petitioner :- Amit Mishra Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shantanu Khare,Sr. Advocate, Shri Ashok Khare Counsel for Respondent :- C.S.C.,Anil Kumar Ray,Avneesh Tripathi,M.N. Singh Hon'ble Saurabh Shyam Shamshery,J.
1. All these writ petitions referred above are raising common questions of law and fact, therefore, as agreed by learned counsel parties, they are being decided by this common judgment. However, for the sake of convenience, the facts mentioned in leading writ petition, i.e., Writ-A No. 10266 of 2018 have been noticed.
2. The reliefs sought in leading writ petition are reproduced hereunder:
"(a) a writ, order or direction of a suitable nature commanding the respondents to permit the petitioners to participate in the practical examination for the post of Regional Inspector (Technical) to be held between 25.4.18 to 28.4.18 in pursuance to the Advertisement No. A-5/E-1/2014 dated 30.12.14 treating the petitioners as fully eligible for the said post;
(b) a writ, order or direction of a suitable nature commanding the respondents to treat the petitioners to be fully eligible for the post of Regional Inspector (Technical) on the basis of Bachelor's degree in Mechanical Engg./ Mechanical & Automation Engineering possessed by the petitioners in terms of Section 213(4) of The Motor Vehicles Act, 1988 read with notification dated 12.6.1989 issued by Central Government.
(c) a writ, order or direction of a suitable nature commanding the respondents to permit the petitioners to participate in each stage of selection for the post of Regional Inspector (Technical) in pursuance to the Advertisement No. A-5/E-1/2014 dated 30.12.14 treating the petitioners as fully eligible for the same."
3. Sri Ashok Khare, learned Senior Advocate assisted by Sri Shantanu Khare, Advocate for petitioners, has submitted that U.P. Public Service Commission issued an Advertisement No. A-5/E-1/2014 dated 30.12.2014 for Regional Inspector (Technical) Examination-2014 whereby applications were invited for 77 vacancies of Regional Inspector (Technical) (Unreserved 42, Scheduled Caste 18, Scheduled Tribe 02 and Other Backward Class 15). Learned Senior Advocate further submitted that the petitioners are aggrieved by Clause 11 of the said advertisement wherein essential educational qualifications are mentioned, whereby the petitioners who are higher qualified and have four years Bachelor of Technology Degree, still they are not eligible to appear in aforesaid examination as prescribed educational qualification is only Diploma in Automobile or Mechanical Engineering. For reference the essential educational qualifications are mentioned hereinafter:
"11. EDUCATIONAL QUALIFICATION:
Essential: (1) Must have passed the High School Examination of the Board of High School and Intermediate Education, Uttar Pradesh or an examination recognized by the Government as equivalent thereto; and (2) (i) A diploma in Automobile Engineering (3 years course) (ii) A diploma in Mechanical Engineering awarded by the State Board of Technical Education (3 years course) or (iii) Any qualification in either of the above disciplines declared equivalent, by the Central Government or State Government; and (3) Working experience of at least one year in a reputed automobile workshop which undertakes repairs of both light motor vehicles, heavy goods vehicles and heavy passenger motor vehicles fitted with petrol and diesel engine; and (4) Must hold a driving licence authorizing him to drive motorcycle, heavy goods vehicles and heavy passenger motor vehicles. (5) Must have thorough knowledge of Hindi language written in Devnagri script."
4. Learned Senior Advocate argued that Section 213 of Motor Vehicles Act, 1988 (hereinafter referred to as the "Act, 1988") provides provision for appointment of Motor Vehicle Officers and sub-clause (4) thereof provides as under:
"(4) The Central Government may, having regard to the objects of the Act, by notification in the Official Gazette prescribe the minimum qualifications which the said officers or any class thereof shall possess for being appointed as such."
5. The Central Government in exercise of powers provided under aforesaid provision issued a notification dated 12.06.1989 which was duly published in the gazette prescribing minimum qualification for the class of officers consisting of the category of Inspector of Motor Vehicles or Assistant Inspector of Motor Vehicles. For reference the said notification is mentioned hereinafter:
"NOTIFICATION S.O. 443(e) In exercise of the powers conferred by sub-section (4) of section 213 of the Motor Vehicle Act, 1988 (59 of 1988), the Central Government hereby prescribes that the minimum qualification for the class of officers consisting of the category of Inspector of Motor vehicles or Assistant Inspector of motor vehicles (by whatever name called) shall be as under--
Qualification:
1. Minimum general educational qualification of a post in X standard; and
2. a diploma in Automobile Engineering (3 year course) Or a diploma in Mechanical Engineering awarded by the State Board of Technical Education (3 year course); and
3. working experience of at least one year in a reputed automobile workshop which undertakes repairs of both light motor vehicles, heavy goods vehicles and heavy passenger motor vehicles fitted with petrol and diesel engine; and
4. must hold a driving licence authorising him to driver motorcycle, heavy goods vehicles and heavy passenger motor vehicles.
2. Nothing contained in the notification shall apply to an officer appointed to such post before the first day of July, 1989 and to an officer appointed to discharge function of a non-technical nature.
3. This notification shall come into force on the first day of July, 1989."
6. Learned Senior Advocate argued that Act, 1988 being a Central Act would have an overriding effect over the State Act, namely, the U.P. Transport (Subordinate) Technical Service Rules, 1980 (hereinafter referred to as the "Rules, 1980") which governs the recruitment to the post of Regional Inspector (Technical) wherein by way of amendment the above referred essential educational qualification is prescribed. However, the said qualifications are not prescribed to be as minimum qualifications as provided under the aforesaid notification issued under Section 213(4) of Act, 1988 and, therefore, the petitioners, who possessed the higher qualification of Bachelor of Technology Degree are estopped from participating in the aforesaid examination. It is further contended that if the qualifications mentioned under the State Act are termed to be minimum qualification as mentioned in the Central Act then the petitioners who possessed higher qualification would be eligible to participate in the examination.
7. In support of above submissions learned Senior Advocate has relied on the judgment passed by Supreme Court in S. Satyapal Reddy and others vs. Government of Andra Pradesh and others (1994) 4 SCC 391 wherein it was held that the State Government may accept the qualification or prescribe higher qualification but in no case any qualification less than the qualification prescribed by the Central Government under sub-clause (4) of Section 213 of Act, 1988. The Supreme Court has further held that Graduation in Mechanical Engineering is one of the higher qualification than Diploma. Learned Senior Advocate also pointed out that earlier the State has made selection and appointed the candidates having B.Tech. Degree in Mechanical Engineering without any objection that they do not possess Diploma certificate. Further reliance was also placed on Supreme Court's judgment in Puneet Sharma and others vs. Himachal Pradesh State Electricity Board Lrd. And another, AIR 2021 SC 2221.
8. Learned Senior Advocate also relied on a judgment passed by Full Bench of Punjab and Haryana High Court in Manjit Singh vs. State of Punjab and others, 2011(1) 115 (P&H)(FB) that the candidates possessing higher qualification in the same line cannot be excluded from consideration for selection and it is a different matter that he/she may not be entitled to any additional weightage for higher qualification but cannot be denied consideration at par with a candidate possessing minimum prescribed qualification. Learned Senior Advocate further relied on a communication dated 11.08.2019 passed by AICTE that B.Tech. is higher level qualification than the diploma and also a communication dated 21.12.2020 issued by Prime Minister's Office regarding certain amendments in qualification were proposed by Ministry of Road Transport and Highways vide SO 1215(E) due to changing trends in automobile sectors.
9. Per contra, learned counsels appearing on behalf of private-respondents, Intervenors and State-Respondents, have vehemently opposed the above submissions and relied upon the judgments passed by this Court in a bunch of cases leading being Deepak Singh and others vs. State of U.P. and others, 2019(7) ADJ 453, which was upheld by Supreme Court in Special Leave to Appeal (Civil) No. 27250 of 2019, Deepak Singh and another vs. The State of U.P. and others, decided on 23.07.2019. The Full Bench in Deepak Singh (supra) has answered the questions referred as under:
"By the Court :- Thus, our answers to the questions posed before the Full Bench are as under:
1) A Diploma in Engineering and Degree in Engineering are two distinct qualifications and a degree in the field in question cannot be viewed as a higher qualification when compared to Diploma in that field.
2) The decision in the case of Alok Kumar Mishra (supra) and Kartikey (supra) laid down the correct position in law holding that the degree holder is excluded from the zone of consideration for appointment as a Junior Engineer with regard to the Diploma in question.
3) The degree holder is held to be ineligible to participate in the selection process of Junior Engineer in the light of the Advertisement issued.
4) The exclusion of the degree holders from the zone of consideration is in consonance with the tests propounded by the Supreme Court in case of State of Uttarakhand and others vs. Deep Chandra Tewari and another.
5) The State Government, while prescribing the essential qualifications or desirable qualifications are best suited to decide the requirements for selecting a candidate for nature of work required by the State Government and the courts are precluded from laying down the conditions of eligibility. If the language in the Rules is clear judicial review cannot be used to decide what is best suited for the employer.
6) The 'O' level Diploma granted by NIELIT is not equivalent to Post Graduate Diploma in Computer Application and there is no presumption available to hold that the PGDCA possess the necessary qualification as prescribed for 'O' level Diploma accorded by NIELIT."
10. Learned counsels also submitted that petitioners were well aware about the essential qualifications as amended in Rules, 1980, however they have never challenged the said Rules even before advertisement was issued as well in the present writ petitions. Therefore, the argument that amended Rules, 1980 are not in consonance with Central Act is liable to be rejected. They also pointed out that present writ petitions were connected with the bunch being leading case Deepak Singh (supra), however on the request of counsel for petitioners it was de-linked, still the ratio of Deepak Singh (supra) governs the issue involved in the present cases, therefore, these writ petitions are liable to be dismissed as the same are squarely covered by the judgement passed in Deepak Singh (supra) against petitioners.
11. So far as the judgment passed in Puneet Sharma (supra) is concerned, learned counsels submitted that it is not applicable on the facts of present cases wherein interpretation was made considering the issue of academic and technical qualification, whereas in the present cases the essential qualifications mentioned in the concerned Rules are pari materia to the qualifications mentioned in Central Act. Therefore, learned counsels submit that these writ petitions are liable to be dismissed.
12. Heard learned counsels for parties and perused the material available on record.
13. In the backdrop of above referred facts and submissions on law, this Court has to decide, whether the word ''minimum' as used in the Central Act would also include all the higher educational qualification though the minimum qualification is only a diploma course and the qualifications mentioned in the State Rules where word ''minimum' is not used still the higher qualification may be considered to be an "essential qualification" (words used the State Rules) for the examination in question.
14. One of the main argument from petitioners' side is that, Mechanical and Automation Engineering is higher qualification in line to the Diploma in Automobile and Mechanical Engineering. However, a different view has been taken by Full Bench in Deepak Singh (supra). The legislature within its wisdom has not included the higher qualification to be eligible qualification in the examination for the post of Regional Inspector (Technical). It prescribed the essential qualification to be diploma in Automobile Engineering or Diploma in Mechanical Engineering only and not included the higher qualification, i.e., Bachelor of Technology Degree. Even the word used ''minimum' in the Central Act itself cannot be construed to the extent that even without mentioning any higher qualification in the notification the higher qualification ought to have been deemed to be included. For that purpose there shall be an amendment to this effect. However, there is no amendment in this regard in the Central Act. Therefore, the argument of learned counsel for petitioners that essential qualification prescribed under Central Act is not inconsonance with the qualification prescribed in the State Rules, appears to be factually incorrect.
15. This issue can be considered from a different angle also. The qualification mentioned in pursuance of Central Act were prescribed in the year 1989, i.e., about more than three decades back. However, till date the Central Government has not amended the said notification by expressly including the higher qualification also. Therefore, in my view, State Rules and the educational qualification prescribed by way of notification by Central Act are similar and there is no repugnancy.
16. The other aspect is to consider, whether now the higher qualification of Bachelor of Technology Degree is also be considered to be one of the eligible qualification for the examination in question. For that, this Court has to consider, whether the facts and circumstances of present cases and the issue involved, are covered by the judgment passed by Full Bench of this Court in Deepak Singh (supra). In the aforesaid judgment following questions were referred for consideration:
"A. Whether a Degree in the field in question is entitled to be viewed as a higher qualification when compared to a Diploma in that field?
B. Whether the decisions in Alok Kumar Mishra and Kartikey lay down the correct position in law when they hold that a Degree holder is excluded from the zone of consideration for appointment as a Junior Engineer?
C. Whether a degree holder can be held to be ineligible to participate in a selection process for Junior Engineer in light of the relevant statutory rules?"
17. The Full Bench after considering the arguments of counsels for parties as well as various judgments passed by High Courts and Supreme Court, finally concluded that a Diploma in Engineering and Degree in Engineering are two distinct qualifications and a degree in the field in question cannot be viewed as a higher qualification when compared to Diploma in that field.
18. At this stage, it is apt to mention some of the judgments of Supreme Court which covers the issues against petitioners and in favour of respondents.
19. In Zahoor Ahmad Rather and others vs. Sheikh Imtiyaz Ahmad and others, (2019) 2 SCC 404 in paras 26 and 27 the Supreme Court held as under:
"26. We are in respectful agreement with the interpretation which has been placed on the judgment in Jyoti KK in the subsequent decision in Anita (supra). The decision in Jyoti KK turned on the provisions of Rule 10(a)(ii). Absent such a rule, it would not be permissible to draw an inference that a higher qualification necessarily pre-supposes the acquisition of another, albeit lower, qualification. The prescription of qualifications for a post is a matter of recruitment policy. The state as the employer is entitled to prescribe the qualifications as a condition of eligibility. It is no part of the role or function of judicial review to expand upon the ambit of the prescribed qualifications. Similarly, equivalence of a qualification is not a matter which can be determined in exercise of the power of judicial review. Whether a particular qualification should or should not be regarded as equivalent is a matter for the state, as the recruiting authority, to determine. The decision in Jyoti KK turned on a specific statutory rule under which the holding of a higher qualification could pre- suppose the acquisition of a lower qualification. The absence of such a rule in the present case makes a crucial difference to the ultimate outcome. In this view of the matter, the Division Bench of the High Court was justified in reversing the judgment of the learned Single Judge and in coming to the 10 id at page 177 conclusion that the appellants did not meet the prescribed qualifications. We find no error in the decision of the Division Bench.
27. While prescribing the qualifications for a post, the State, as employer, may legitimately bear in mind several features including the nature of the job, the aptitudes requisite for the efficient discharge of duties, the functionality of a qualification and the content of the course of studies which leads up to the acquisition of a qualification. The state is entrusted with the authority to assess the needs of its public services. Exigencies of administration, it is trite law, fall within the domain of administrative decision making. The state as a public employer may well take into account social perspectives that require the creation of job opportunities across the societal structure. All these are essentially matters of policy. Judicial review must tread warily. That is why the decision in Jyoti KK must be understood in the context of a specific statutory rule under which the holding of a higher qualification which presupposes the acquisition of a lower qualification was considered to be sufficient for the post. It was in the context of specific rule that the decision in Jyoti KK turned." (emphasis supplied)
20. Another judgment of Supreme Court is The Maharashtra Public Service Commission vs. Sandeep Shriram Warade and others, (2019) 6 SCC 362 and the relevant para 9 of the judgment is reproduced as under:
"9. The essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive rewriting of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the Court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the Court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same."
(emphasis supplied)
21. In Chief Manager, Punjab National Bank and Another vs. Anit Kumar Das, 2020 SCC OnLine SC 897 in para 21 Supreme Court held as under:
"21. Thus, as held by this Court in the aforesaid decisions, it is for the employer to determine and decide the relevancy and suitability of the qualifications for any post and it is not for the Courts to consider and assess. A greater latitude is permitted by the Courts for the employer to prescribe qualifications for any post. There is a rationale behind it. Qualifications are prescribed keeping in view the need and interest of an Institution or an Industry or an establishment as the case may be. The Courts are not fit instruments to assess expediency or advisability or utility of such prescription of qualifications. However, at the same time, the employer cannot act arbitrarily or fancifully in prescribing qualifications for posts......"
(emphasis supplied)
22. In view of above discussion on facts as well as on law the prayers made in all these writ petitioners are liable to be rejected, firstly on the ground that there is no repugnancy between qualification prescribed by notification issued under Act, 1988 and Rules, 1980, as mended with regard to selection on the post of Regional Inspector (Technical); secondly, the present cases are squarely covered by the judgment passed by Full Bench of this Court in Deepak Singh (supra) wherein it was held that Diploma in Engineering and Degree in Engineering are to distinct qualifications and the decree in the field in question cannot be viewed as a higher qualification without comparing to Diploma in that field; thirdly, considering the above referred judgments passed by Supreme Court, that in absence of any statutory rule it would not be permissible to draw an interference that a higher qualification necessarily presupposes the acquisition of another lower qualification, fourthly, that prescription of qualification for a post is the matter of recruitment policy and lastly Article 14 of the Constitution does not envisage negative equality.
23. In the result, all the writ petitions are failed and dismissed accordingly.
Order Date :- 27.04.2022 AK